those men, they just didn't believe they were the best bet to win. anything can happen. ever since hillary clinton made her move on same-sex marriage, it's the reality. thank you for being with us. coming up next "now with alex wagner." the debate over marriage equality reaches the highest level of american government. as of tonight it is far from resolved. it's tuesday, march 26th. i'm alex wagner and this is "now." >> we are all witnesses to a supporters of american history. >> the latest details on the

republican stall. >> we got at this point to work up the political courage to do what's required to be done. >> i didn't get anything wrong -- >> michele bachmann's campaign is coming to terms with something called ethics. ethics violations. >> now we've moved into the realm of gangster government. north dakota clamps down on women's reproductive rights, passing the most restrictive anti choice law yet. cecile richards with the latest attack on the war on women. the fight for marriage equality began in front of the supreme court today. after hearing oral arguments on proposition 8, california's ban on same-sex marriage, the nine justices were forced to confront the very meaning of marriage. the lawyer defending prop 8, charles cooper, says the ban doesn't violate the constitutional rights of same-sex couples, but cooper acknowledged that the country's

understanding of marriage is changing rapidly, he says evolution should continue without the supreme court's interference. as mother jones put it, cooper was supposed to argue that california had a legitimate interest other than simple bigotry in banning same-sex couples in getting married. he difficult finding one. cooper found that marriage is about pro creation, but justice elena kagan challenged this argument. >> if you arory the age of 55, you don't help us serve the government's interest in regulating pro creation, through marriage so why is that different? >> your honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the relationship are infer tile. >> i can assure you if both the women and man are over 55, there are not a lot of children coming

out of that marriage. >> a lesson in fertility. justice stephen breyer acknowledged, there are a lot of people who get married who can't have children. and what of the same-couples who do have children? cooper argued harm could be done to them and anthony kennedy pointed to the tens of thousands of california children already living with gay parents. >> there are some 40,000 children in california according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. the voice of those children is important in this case, don't you think? >> as the court considered the potential hazards of gay marriage, it took up the issue of whether same-sex marriages actually cause harm to heterosexual married couples. >> what harm you see happening and when and how and what --

what harm to the institution of marriage or to opposite sex couples, how does this cause and effect work? >> once again, i -- i would reiterate that we don't believe that's the correct legal question before the court. and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as it were. >> are you conceding the point that there is no harm or den ig ration to traditional option sex marriage couples? so you're conceding that. >> no, your honor. no. i'm not conceding that. >> well, seems to me that you should have to address justice kagan's question. >> justice kennedy, two points to make. the first one is this. the -- the plaintiff's expert acknowledged that redefining

marriage will have real-world consequences and it's possible and to see the future accurately enough to know exactly what the real-world consequences would be. and among those real-world consequences, your honor, we would suggest adverse consequences. >> if traditional marriages suffer at the hand of crazy, new-fangled gay marriages, it says who knows? it might be bad. will that be strong enough cause to deny a fundamental right. court for today indicated it may not even try to wade into all of that to begin with. several justices on both sides of the ideological spectrum wondered if the court moved too fast in taking the case in the first place. >> are you asking particularly because of the sociological edd you cite, for us to go into

unchartered waters. i just wonder if the case was properly granted. >> do you want us to step in and render a decision based on the effects of this institution which is newer than cell phones or the internet? >> with the specter of bush versus gore far behind them, attorneys david boyes and ted olson addressed reporters following arguments. they didn't seem too sure about anything either. >> based upon the questions the justices have asked, i have no idea. the court never gives you an idea of how they will decide. if they didn't today, they obviously read the briefs, care about the issues and we'll see what the court decides, but this is not a democratic issue ory public i had c or republican issue. this is an issue of american constitutional rights. >> joining me now, jonathan turley, professional of constitutional law at george washington university. thank you for joining me, again.

this big day at the supreme court. i want to talk about standing, because this basically seems to be the, d, none of the above option that the supreme court is leading toward. fundamental questions about the nature of unions, marriage, equality what say civil right? what is a constitutional right? and both justices both leaning on the progressive side of the spectrum and the conservative side of the spectrum don't want to tackle it. they seem to say it's too soon. am i reading it right? >> i think you are reading it right. the image of today is that it's driver going slow with their turn signal on. they want an exit. this is an incrementalist court, they don't like the major decisions historically. even famous decisions like roe versus wade, brown versus board of education, it wronged the institutions. even the ones that supported it felt the court got ahead of the public and tried to avoid that but what is really interesting

today was it's clear these justices haven't resolved the fundamental questions in their mind, even kennedy. kennedy said the trend toward equality may reach a magnificent end or go over a cliff. that's a chill statement it gave insight that even kennedy isn't too clear. >> scalia seems to have had more of an antigay rights agenda on decision making on the court. i want to play a little exchange between him and ted olson, talking about whether or not gay marriage has been deemed unconstitutional. let's take a listen to that. >> when did it become unconstitutional to prohibit gays from marrying? >> they did not assign a date to it, justice scalia. as you know, what the court decided was the case that came before. >> i'm not talking about the california supreme court. i'm talking about your argument. you say it's now constitutional. >> yes. >> was it always

unconstitutional? >> it was constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. >> i see. when did that happen? >> there is no specific date and time. >> how am i supposed to know how to decide a case when you can't give me a date when the constitution changed? >> this seems to be a bit of a brilliant sort of scalia judicialujitsu, he is trying to undermine the argument the constitutionality of gay marriage, as no one ever questioned that. >> i thought it was an unconvincing effort of hamlin on the potomac. angst filled, what am i, who am i, where am i moment. justice scalia didn't have that problem in heller where they

recently recognized a full flown right in the second amendment as a personal right. the court does recognize rights. they come to a tipping point and this is a classic trajectory. one of the strange things about this. many of the justices kept on referring to this as a new issue. always a bit chilling. that's how scalia portrayed it. not a real issue. harvey milk wasn't born yesterday this is a longstanding movement for equality and scalia has deep problems with many privacy rulings. he was against the decision in morris, so he was against the decriminalization of home sexuality. so he's really citing cases back in the 19th century. >> how can he have his cake and eat it too? this is new, there is no judicial precedent, but i have a point of view, but i won't explain that or make station based on that because it's too

soon. the circles or levels of deception seem to be pretty profound. >> it's not very convincing. he has a history of going boldly into unchartered territories when he felt that was the direction they needed to go. and no one was surprised about scalia, thousagh i thought he played his role fairly well, but i didn't find it convincing. more unnerving was the general thrust of the justices that they didn't want to go down the highway. they want an exit. and frankly, looking for a cheat. a way to get out of this. without nailing equality. without recognizing it either. >> turley, nine justices looking for an off-ramp. let's turn to the executive director of freedom to marry and new york attorney general. eric, i thought one of the craziest things to come out was the notion that somehow gay

marriage is the new hangled thing akin to cell phones. you may argue that the legalization of gay marriage is relatively new. but the idea of two people wanting to join themselves in holy matrimony as is old as time. what you said is exactly right. and we should put aside the words gay marriage forever. we're not talking about gay marriage. we're talking about the freedom to marry. something the supreme court has recognized in at least 14 cases, as something very important and justice thurgood marshall said one? one of the cases, the case of loving vs. virginia about interracial marriage, the freedom to marry is important to all people. what gay people are seeking here is the same freedom to marry as other loving and committed couples share in, and they are saying, we're saying that there is no good reason for excluding gay couples from the freedom to marry. in the excerpts you plays in the

court. justice kagan and others asked questions, and the attorneys on the anti gay side were unable to come up with a good reason and that's exactly what court after court and now state after state have found. >> eric, that's a great point that evan brings up, is that those who are in support of proposition 8 and against marriage equality have found themselves painted into the weird corner where they have to make the case where gay people getting married is somehow harmful to the institution of marriage or heterosexual couples which seems to be a losing prescription, it not? >> i agree with evan and find the argument that this is about something new. this is not about something new. equal justice under law has been the founding principle of the united states for a long time, and the evolution of american law, because our constitution is a growing document, which everyone but justice scalia seems to get, though he was happy to find a new twist to the second amendment, cob tra

addicting hundreds of years of juris prudence, we only involve in one direction, toward greater equality and greater in collusion, the acknowledgment to loving vs. virginia, is right on point. the supreme court managed to come back to the reinvague ration of principles of equal justice under law and due process and open the door a little wide everr. we were debating marriage equality in new york. there were a lot of arguments about its effect on religious institutions it it doesn't create problems for religious institutions or opposite sex marriages. they were down to this argument that the state has an interest in pro creation that somehow we'll be damaged. that argument, literally laughter in the court during that part of the argument.

we're at the point where neither this case or if they do duck it and just uphold the law in california. allow california to go forward with same-sex marriage and not provide a greater ruling, the loving vs. virginia moment is coming. the other side is out of arguments. >> i want to follow on that if as jonathan suggests there is an off-ramp that the supreme court takes what does that do to momentum in terms of marriage equal fo equality? the gay rights community? is that seen as defeat, stoke the fire, what's your read? >> look, every delay, every day that couples are denied the freedom to marry is real harm to couples. an insult to their commitment and love. it means that parents will die without able to dance at their kids' weddings. kids are growing up without the stability and security that marriage brings to many, many families. but in terms of the momentum,

the very same freedom to marry strategy that has brought us to the moment with 58% of the american people to support the freedom to marry, 81% of young people. 62% of evangelical christians, supporting the freedom to marry. the very same freedom to marry strategy that brought to us this moment will bring us to the freedom to marry nationwide whether in june when the supreme court rules or in the next round as justice ginsberg pointed out, the supreme court got interracial marriage wrong before they got it right. we're going to keep pushing, keep engaging, keep building support and if not with these justices, then in the next round. if we do the work. >> i had say this again and again until it's the law of the land. the arc of history is long, but it bends toward justice. those are not my words, but they are appropriate tonight. thank you for your time. >> thank you. up next what is the matter

with california? anything? or nothing at all? we weigh in on state that brought us prop 8 and hollywood liberals. as certified recovery specialists at lifelock, we're dedicated to getting you back on track from identity theft. to protect you from being a victim in the first place, we have specialists for that, too. ♪ [ alarm blaring ] ♪

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one of the easiest things to forget about proposition 8, it wasn't passed by a red state, but the hippy hidaway of california. salon's david sarota writes the state is a sign post for those who forment fear that liberals, progressives, socialists, communists, hippies and other alleged undesirabilities trying to turn america into california. what does california tell us about america? when prop 8 passed, the state's biggest and historically most liberal counties approve of it. in january of 2000, only 39% of

squalled liberal californians supported same-sex marriage. by the time proposition 8 landed on the ballot, same-sex marriage had gained significant support. 48% of californians voted in support of marriage equality in the 2008 election. by may of 2012, californians had an official change of heart. as of last spring, 54% supported same-sex marriage and support continues to grow. as the supreme court debates whether law making must catch up to social science, prop 8 seems to have outstayed its welcome on the left coast. how far behind is the rest of the country? let us bring in david sarota, salon.com contributor. david, have you a great piece in salon talking about california. it is dramatic to me. we talk a lot about the national shift in moods and feelings over marriage equality in california,

which as you say is sort of vilified and celebrated as this haven of liberal values, it's the opinion on gay marriage has changed dramatically in the last decade. transfer h >> it has changed. look, california is a state which historically has led the country on a number of things, environmental initiatives, reflects back where the public opinion is. look, i used to -- when i worked for barney sanders ten years ago, vermont was the first state to passively unions, it was controversial in vermont, one of the only states that's to the political left of california. when california has changed on an issue like gay marriage, it simply reflects it's one of the states that's -- that is changing in terms of public opinion, on the edge, on the leading edge of public opinion, but that's where public opinion obviously is going in the rest of the country, which shows california really isn't a place as conservatives say is out of

step with america. >> mark, you are a representative from the great state of california. you have come out in public life. i'm sure that's a difficult position to be in. when the supreme court talks about national attitudes and maybe we aren't there yet, what do you make of that? >> i reject that notion. i want to remind you, not only am i a representative of california. i'm also a representative from riverside county, which voted strongly in favor of proposition 8 four years ago. you know, i occasion-- i came o before my election in 2012, it was well known that i was an openly gay candidate, and the people of my district elected me resoundingly last november, and i say if riverside county can be on the right side of history so

can the supreme court. >> david, i want to talk to you about this off-ramp we were talking about in the last block. the idea that the supreme court is sort of using the smoke screen, we're not there yet as a society, community, the social science isn't it yet. we don't have a determined sort of set of outcomes as far as whether or not gay marriage is harmful to children and heterosexual couples. you argue that is an excuse. that they don't have to come out on a decision on this. and i want to paraphrase your upcoming article in salon, they are too big to fail. some decisions are just too big. tell us about that. >> what's disturbing about this, that some of the justices seemed to be saying they are afraid of the political fallout if there is a ruling that legalizes gay marriage. we heard that sentiment from a number of justices. the problem is that the justices, that means they are not necessarily focusing on the constitutionality of the california proposition, and of

same-sex marriage bans. they are focused on whether they are ruling, they are overturning those bans on constitutional grounds would have political fallout. the problem with that is that means the court is in the business of ruling on their perception, their subjective perception of what the political fallout will be, not on the fundamental question that they are hired, that the justices are employed to rule on, which is whether those bans are constitutional. essentially what have you are justices who may be saying that same-sex marriage bans, they may be unconstitutional, but because overturning them would be politically divisive, those bans should be too big to fail. we saw that same precedent when it came to banks. where prosecutors were afraid if they prosecuted banks, there would be economic fallout. we won't prosecute them because of the perception of fallout. when criminal justice and justice issues in general are decided based on the justice system's perception of fallout, that means they are not deciding

those issues impartially based on the law. >> and i also think we have to talk about the human element here. we have talked a lot about interracial marriage. it's striking when we talk about whether the country is there or not on interracial equality. we look at the time where the supreme court decided loving vs. virginia it, had 20% approval and 73 disapproval. that's dramatically different than where pup opiniblic opiniow on gay marriage. >> i wouldn't say we're in a situation where we have an arc bending toward justice. we're on an acceleration curve toward justice. i'm not only an openly gay member of congress, i'm the first openly gay member of color. my brothers have married outside the race. and 64 years ago in california,

that would have been illegal. we had a case in california that decided that marriage -- interracial marriage, much earlier than the rest of the country. let me say also to this point about where california is, you know, four years prior to prop 8, there was an initiative on the california ballot that didn't change the constitution, it changed the statute and made a definition of marriage. the vote in california was i think in the 60% -- over 60% of californians voted in that initiative to define marriage in a man and a woman and four years later that margin whittled down to a little over two percentage points. i believe a similar transformation has happened in my own congressional district. that's strong evidence that not only is there a curve that

we're -- it's an acceleration curve we're on. >> i support and endorse the acceleration curve. david sirota and mark takano, thank you for joining us. >> thank you. >> dreams really do come true. america's newest multimillionaire and his name is not mitt romney, but he is at the center of a big debate. you know, other countries have couches exactly like yours.

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welcome back. john mccain is not exactly helping his party when it comes to immigration reform. a 25 undocumented immigrant asked him to drop the "i" word, immigrant. and asked him to use latino. dropping those seven letters is perhaps too much to ask for mccain. mccain responded "someone who crosses our borders illegally is here illegally. call it whatever you want to, but it's illegal. there is a big difference between someone who does something that does illegal and someone who is undocumented. i'll continue to call it illegal." at least he managed to say

self-deportation. i'm joined by a national political reporter from "the washington post" and a reporter from "new york times magazine." thank you, beautiful people, for joining us. >> it is hair and makeup. >> since nya is here with me live on set, let's talk about the likelihood of immigration reform passing. every time i think there is progress being made, you hear john mccain, who has been leading this senate as part of the gang of eight, we can't get use of illegal. >> john mccain, before he was talking about building a dang fence, lindsey graham using terms like anchor baby. the gop has come pretty far.

john mccain says there are bumps in the road every five minutes, but he's ultimately optimistic. the gang of eight there, is agreement, largely around border security, and agreement there should be a pathway to citizenship, the sticky part comes in around the guest worker program, so you have on the one hand, unions and on the other hand, you have the chamber of commerce and there are lagger heads not speaking at this point in terms of what they want to see from guest workers and the ability to come into this country and for companies to hire immigrants at low wages. also, that's a real sticking point. i think you have the white house sort of, you know, looking at their watches, being like what's going on. they are careful not to want to get into this too much. but they also feel like the clock is ticking. >> so in the city of dysfunction in which both of you reside, is this going to be the one thing that gets done? we have looked at how measurable gun safety reform has been

watered down or thrown in limbo. we don't know what will happen when congress gets back from recess if the senate moves from immigration is that not a win? and isn't there a house dominated by republicans that want to do anything but give the president a win? >> yes, it is clearly a win for the president and a lot of republicans will be governed by that. that's short-term thinking if there is bipartisan consensus on any one issue, no matter where you are on the issue this is the one that has momentum, and if you look at certainly the stature of the senators behind the effort it is a very persuasive group. the white house sees time as somewhat of its ally and also an enemy if this drags out too long, republican primaries in mid term can be killer to this issue. that's when the base and grassroots gets vocal and

republicans become much less likely to vote for something like this but i think there is definitely momentum for this, something big happening before any other issue. >> nia, mark brings up the point of the 2016 elections and there is a breakdown of how important the latino vote is to house republicans, and numbers are not great if you are looking for a broad support for immigration reform. 84% of house republicans represent districts that are 20% or less hispanic. mark outlines this has to get done soon. if they wait too long and there is the worry about primary challenges and the base getting vocal, it could be doa. >> if you look at the gop districts, they have been jerry manderred and are overwhelmingly white. you will have the force really rearing its head closer to 2014,

but you have the countervailing force we have not seen before, and that is evangelicals, pressing on folks in the gop, folks they go to for support and get out their base, saying, listen, we need to come -- essentially have a come to jesus moment since i'm talking about church at this point around comprehensive immigration reform. they see an increasing number of latinos in those seats and they think it's time for republicans to get on board with comprehensive immigration reform. >> i want to talk about john mccain before we go. what does this do to burnish the legacy of john mccain? in a lot of ways, the choice of sarah palin, 2008 campaign, the magic of yore was gone and an any old man replaced him. it seems he's reluctant to drop the term of illegals. other moments in town halls and we don't have time to play them,

where he has defended the contribution of immigrants to society, to the economy. is this the how the john mccain got his grove back? >> i don't know if he has his groove back. the illegal comment was very much in character. he answered the question i believe trustfully and straight talk behind it. he has been not all over the map, but the incarceratinations john mccain, the maverick to the supermaverick to the agitators to the base guy to the nominee to the real base guy when he was trying to get re-elected in the primary in 2010, to now a post 2012 version. i think, look, republicans agree that this is -- this might be a short-term win for obama, but a long-term problem. if they can get something big done now, they can take it off the table, or at least blunt the notion that this is the

anti-immigration party and john mccain is very much aware of that. >> thank you for sharing your time and undereye concealer with all of us. >> she is back. falsehoods and convertible choices, the congresswoman from minnesota's sixth district continues her triumphant return to the national stage with an ethics investigation. didn't think it could get any better than the tea party response, did you? it has. that's next. twins. i didn't see them coming. i have obligations. cute obligations, but obligations. i need to rethink the core of my portfolio. what i really need is sleep. introducing the ishares core, building blocks for the heart of your portfolio. find out why 9 out of 10 large professional investors choose ishares for their etfs. ishares by blackrock. call 1-800-ishares for a prospectus which includes investment objectives, risks, charges and expenses.

read and consider it carefully before investing. risk includes possible loss of principal. trouble looms for minnesota's michele bachmann as the women of north dakota face a harsh new reality. stick around. mallon brothers magic?

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about, you talked about the excesses he's engaged in, the

fact he has a dog walker, which is not true. >> the big point of my speech was about benghazi. >> last week, congresswoman michele bachmann was literally running away from the falsehoods she had been spreading about president obama. this week, she's running away from considerably more. she's under investigation by the office of congressional ethics for alleged misuse of campaign funds. they are looking at whether she used money to help fund her failed run for president raised by one of her political action economies. she says we are confident that at the ends of their review that the oce board will conclude that congresswoman boachmann did nothing inappropriate. if she's not doing something inappropriate, she is not michele bachmann. there were claims that hillary clinton's aide had ties to a terrorist group. there were claims that

vaccinations caused mental retardation. >> a woman came up crying to me after the debate. said her daughter was given that vaccine. she told me her daughter suffered mental retardation as a result of that vaccine. >> in appropriate gender stereotypes. >> be submissive, wives, to your husbands. >> and inappropriate remarks on slavery. >> i think it is high time that we recognize the contribution of our forebearers who worked tirelessly, men like john quincy adams, who would not rest until slavery was extinguished in the country. >> here was a greatest hits reel of michele bachmann and how inappropriate she really is. >> now we have moved into the realm of gangster government. we have gangster government. i want people in minnesota armed and dangerous on this issue. we have an imperial presidency. our fathers thought taxation

without representation was bad. what would they think of representation with taxation? i don't know what's going to happen. this is the crown jewel of socialism. socialized medicine. socialized medicine will kill the country. socialized medicine is the heart and soul and crown jewel of socialism. >> well, the review board may not ultimately deem michele bachmann inappropriate, after three terms in congress, the american public very likely already has. coming up, the women of north dakota fall victim to a campaign to effectively end the right to choose. planned parenthood's cecile richards joins me, coming up next. we're here! we're going to the park! [ gina ] oh hey, dan!

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spend less time on the ground and more time in the air. suddenly, faraway places don't seem so...far away. ♪ the state of north dakota gave march madness a whole new meaning today when its republican governor jack dalrymple signed the toughest restrictions on abortion into law. the law appears to be in clear violation of roe vs. wade, but governor dalrymple isn't letting that minor detail stop him. he says "although the likelihood of this measure surviving a court measure in question this is a legitimate attempt by a state legislature to discover

the boundaries of roe vs. wade. this measure is one of many attempts by north dakota's republican-roled legislature to "discover the boundaries of roe vs. wade." the state passed a measure that defines life beginning at concept. it would kwi the legality of birth control and in vitro fertilization. it may seem like north dakota's lawmakers want to clamp down on abortion clinics, but the number of abortion clinics is exactly one. for a legislature intent on protecting life, no matter what settled law dictates, it's regulations are inconsistent at best. for example, in north dakota, drivers are not required to wear a seat belt. and while all eyes may be focused on the state, what happens in north dakota does not stay in north dakota. all over the country, anti

choice groups like personhood usa are targeting states with republican controlled legislatures and are seizing this moment of single party control to chip away at a woman's constitutional right to choose what happens to her body, one state at a time. and with 53% of americans living in states where republicans control the legislature and the governorship, there is indeed a lot at stake. joining me now is cecile richards, president of planned parenthood action fund. good to see up. >> good to see you, alex. >> let's talk about what's happening in north dakota. generally speaking, all of these republican held statehouses and this precedent it says. north dakota has a surplus of $2 billion in oil revenues, which makes it a lot easier to fight a controversial decision like the one they are making. >> the crazy thing, this isn't supported by the people of north dakota. and somehow, you know, governor

dalrymple by signing these bills today has made north dakota now the most unsafe state in the country for women. and, you know, some irony that today you see before the supreme court, the opportunity to expand the freedom to marry and the state of north dakota taking away a right that people have had for 40 years in america. >> cecile, i want to ask you broadly about the question of a woman's right to choose. obviously things happening on the legislative level, and the debate and the supreme court hearing issues related -- hearing cases related to gay marriage and marriage equality has dredged the whole controversy, a revisitation of roe vs. wade. ruth bader ginsberg said it's not that the judgment was wrong, but it moved too far too fast. the court made a decision nah made every abortion law in the country invalid, even the most liberal. we'll never know whether i'm right or wrong. things might have turned out

differently if the court has been more restrained. i think it's shocking there thaw there is advocacy for rolling back the decision that the court made, too far ahead of its time. what do you make of that? >> of course, i respect justice ginsberg immensely and she does believe in the fundamental right of women to make their own decisions under the 14th amendment. what is so incredible, this is a constitutional right in this country for 40 years, but some states trying to roll back all of that progress. and i think what american people are, women's ability to make their own decisions, or a couple's ability to make their own decisions on their families shouldn't depend on what zip code they live in. that's what we're seeing in north dakota, seeing it in arkansas, where they have passed extreme measures to outlaw legal abortion. people don't want to go back to the days where women couldn't go and get legal services.